Linda M. Jwanouskos v. Department of Homeland Security ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA M. JWANOUSKOS, DOCKET NUMBER
Appellant, DC-0752-15-0127-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 9, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Linda M. Jwanouskos, Norwell, Massachusetts, pro se.
Andrew Cannady, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her removal claim under the doctrine of collateral estoppel. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review. Except as expressly MODIFIED by this Final
Order to address and dismiss for lack of jurisdiction the appellant’s retirement
claim, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The Secret Service removed the appellant on October 18, 1999, for failing
to meet security clearance requirements. Jwanouskos v. Department of the
Treasury, 246 F. App’x 677, 677-78 (Fed. Cir. 2007). 2 The appellant filed a
Board appeal challenging her removal. Jwanouskos v. Department of the
Treasury, MSPB Docket No. DC-0752-00-0091-I-1, Initial Decision (ID 0091)
at 1 (Mar. 6, 2000). The administrative judge issued an initial decision affirming
the appellant’s removal. Id. at 1, 5. The appellant filed a petition for review and
the Board issued a Final Order affirming the initial decision. Jwanouskos,
MSPB Docket No. DC-0752-00-0091-I-1, Final Order (Dec. 7, 2006). She
sought review in the U.S. Court of Appeals for the Federal Circuit. Jwanouskos,
246 F. App’x at 677-78. The court affirmed the Board’s decision. Id.
2
Congress has since transferred responsibility for the Secret Service to the agency. See
Jwanouskos, 246 F. App’x at 677, 677 n.1.
3
¶3 Over 7 years after the issuance of the Federal Circuit decision, the appellant
filed the instant appeal challenging her removal and seeking to make a disability
retirement claim against the District of Columbia Police and Firefighters’
Retirement and Relief Board (PFRRB). Initial Appeal File (IAF), Tab 1 at 3, 5,
8, 15-16, 18. The administrative judge issued an initial decision, without
holding the requested hearing, dismissing the appeal as barred by the doctrine of
collateral estoppel. IAF, Tab 16, Initial Decision (ID) at 1-2 & n.2, 4-5. The
appellant has filed a petition for review. 3 Petition for Review (PFR) File, Tab 1.
The agency has responded, and the appellant has replied. PFR File, Tabs 4-5.
The administrative judge properly held that the appellant’s removal claim is
barred by the doctrine of collateral estoppel.
¶4 On petition for review, the appellant claims that her Top Secret security
clearance was not revoked. PFR File, Tab 1 at 2. Further, she alleges
“[e]rroneous procedures” by the agency in issuing her removal. Id. We agree,
however, with the administrative judge that the appellant’s removal claim is
barred by the doctrine of collateral estoppel. 4 ID at 4-5.
¶5 The Board may apply the doctrine of collateral estoppel to dismiss an
appeal where: (1) the issue is identical to that involved in the prior action; (2) the
issue was actually litigated in the prior action; (3) the determination on the issue
in the prior action was necessary to the resulting judgment; and (4) the party
3
On review, the appellant requests that the Board appoint an attorney to represent her.
PFR File, Tab 5 at 2. It is the appellant’s obligation to secure representation.
Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989). The Board
is not required by law, rule, or regulation to appoint counsel for an appellant. Id.
4
To the extent that the initial decision referred to the appellant’s removal claim as
dismissed for lack of jurisdiction, we modify it to reflect that the dismissal is grounded
solely on the basis of collateral estoppel. See ID at 1 nn.1-2; Noble v. U.S. Postal
Service, 93 M.S.P.R. 693, ¶¶ 10-11 (2003) (holding that collateral estoppel may be
grounds for dismissing an appeal for lack of jurisdiction only where a prior finding of
lack of jurisdiction is afforded collateral estoppel effect). Nonetheless, any error in this
regard did not affect the appellant’s substantive rights. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
4
against whom preclusion is sought had a full and fair opportunity to litigate the
issue in the prior action, either as a party to the earlier action or as one whose
interests were otherwise fully represented in that action. McNeil v. Department of
Defense, 100 M.S.P.R. 146, ¶¶ 11, 15 (2005); see Kroeger v. U.S. Postal
Service, 865 F.2d 235, 239 (Fed. Cir. 1988) (stating the same test differently).
¶6 The appellant’s prior appeal challenged the same removal action she
challenges in the present appeal. Compare IAF, Tab 1 at 3, with ID 0091 at 1-2.
The appellant was a party to the prior appeal, it went to hearing, and her removal
was affirmed. 5 See Jwanouskos, 246 F. App’x at 677-78; ID 0091; see also
McNeil, 100 M.S.P.R. 146, ¶ 14 (recognizing that the Board will ordinarily only
inquire whether a party was “fully represented” when an individual who was not a
party to an earlier proceeding contests an issue that was decided in that
proceeding). Further, the removal was determined to be free from procedural
error. ID 0091 at 3-4; PFR File, Tab 1 at 2. Therefore, we conclude that the
appellant’s removal claim is barred by collateral estoppel. 6
The Board lacks jurisdiction over the appellant’s retirement claim.
¶7 On petition for review, the appellant argues that the Board’s decision has
resulted in the loss of her eligibility for disability retirement and a deferred
5
It appears that in the instant appeal the appellant raised claims of disability
discrimination and reprisal for prior equal employment opportunity activity. See IAF,
Tab 14 at 1, 3. The initial decision in the appellant’s prior appeal did not resolve any
such claims. ID 0091. However, we find that these potentially new legal bases do not
prevent us from disposing of the instant appeal based on the doctrine of collateral
estoppel. The Board is not permitted to adjudicate whether an agency’s adverse action,
which is premised on the suspension or revocation of a security clearance, constitutes
impermissible discrimination or reprisal. Putnam v. Department of Homeland Security,
121 M.S.P.R. 532, ¶ 18 (2014).
6
Although the appellant requests a hearing on review, we find that she is not entitled to
one on the issue of collateral estoppel. See Peartree v. U.S. Postal Service,
66 M.S.P.R. 332, 336-37 (1995) (finding that the purpose of the doctrine of collateral
estoppel is to “relieve parties of the cost and vexation of multiple lawsuits, conserve
judicial resources, and, by preventing inconsistent decisions, encourage reliance on
adjudication” (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980))).
5
annuity. PFR File, Tab 1 at 2, Tab 5 at 2. Although the appellant raised her
retirement claim below, the administrative judge did not address it. See ID.
Therefore, we address it here, finding that the Board lacks jurisdiction over
this claim.
¶8 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board only has
jurisdiction over retirement issues that have been the subject of an Office of
Personnel Management (OPM) final decision. Litzenberger v. Office of Personnel
Management, 88 M.S.P.R. 419, ¶ 9 (2001); Lewis v. Office of Personnel
Management, 69 M.S.P.R. 395, 397-98 (1996).
¶9 In October 2014, the Clerk of the Board notified the appellant that she
could file a Board appeal regarding her disability retirement if she had a final
decision from OPM. IAF, Tab 1 at 9. She did not file any evidence indicating
that OPM has issued any decision relating to her retirement. On review, she only
states that she is “in the process of contacting [OPM].” PFR File, Tab 5 at 2.
Because the appellant has provided no evidence that she requested or received a
final decision from OPM, the Board may not exercise jurisdiction over this claim.
See Livingston v. Office of Personnel Management, 105 M.S.P.R. 314, ¶ 10
(2007) (finding that a request for reconsideration is a prerequisite for Board
jurisdiction over a disability retirement appeal).
¶10 Further, the Board generally only has jurisdiction over retirement
determinations arising under the Federal retirement laws. See 5 C.F.R.
§ 1201.3(a)(2) (discussing the scope of the Board’s appellate jurisdiction). To
the extent that the appellant seeks to challenge a decision of the PFRRB made
under the laws of the District of Columbia, we lack jurisdiction to review her
retirement claim.
6
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the
following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
7
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.